Stay Pending Appeal

In this post, I discuss the stay pending appeal and how it can prevent the enforcement of a judgment until the final resolution of the appeal.

*Photo by WEBN-TV is licensed under CC 2.0. *

Generally, in a civil matter on appeal, the appellant has lost the case—thus the reason for filing the appeal—and the appellee has been awarded a judgment against the appellant. The appellant, however, does not want to pay the appellee until the appeal is settled and, in fact, hopes never to have to pay the appellee at all. This is where the supersedeas—that is, the stay pending appeal—comes into play.

A supersedeas is a written order requiring the appellee to stay proceedings to enforce the judgment against the appellant while the appeal is pending. Generally, the clerk of the circuit court from which the judgment originated issues the supersedeas, though it may sometimes be issued by the clerk of the appellate court.

This is simply a stay pending appeal. It helps ensure that a judgment is not enforced until it is no longer in jeopardy of being overturned. It would certainly be inefficient to enforce judgments only then to reverse that enforcement after the appellate court has heard the case.

Of course, this creates a potential issue for the appellee. The appellee has just had a judgment awarded but, on account of the stay pending appeal, is unable to enforce it. He or she doesn’t know if the appellant will even have the money to pay after the potentially extensive appeals process has been exhausted. A stay pending appeal can therefore cause real damage to the appellee.

To help remedy this problem, Arkansas requires the appellant to post a supersedeas bond. The effect of the supersedeas bond is to provide assurance that the appellant will pay the appellee any amount of the judgment that is affirmed on appeal—or, if the appeal is dismissed or the appellant fails to carry it through to the end, shall satisfy the judgment awarded by the lower court.

This bond must be submitted to the court for its approval and must have such surety or sureties that the court requires. For further information, see Jones Day’s article on the supersedeas bond here.